Opinion
J-S52004-17 No. 259 MDA 2017
08-31-2017
COMMONWEALTH OF PENNSYLVANIA v. CLIFFORD LEE FASSNACHT, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order December 8, 2016 in the Court of Common Pleas of Lancaster County, Criminal Division, No(s): CP-36-CR-0000895-2015; CP-36-CR-0002763-2007; CP-36-CR-0003473-2008; CP-36-CR-0005913-2014 BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Clifford Lee Fassnacht ("Fassnacht") appeals from the Order denying his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In its Opinion, the PCRA court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 12/8/16, at 1-4.
The PCRA court denied Fassnacht's Petition on December 8, 2016. Fassnacht subsequently filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
On appeal, Fassnacht raises the following questions for our review:
I. Did the PCRA court err when it did not permit into evidence[,] and did not consider[,] the report of Timothy Martin, D.O., Ph.D. [("Dr. Martin"),] when rendering its decision that [] Fassnacht entered a knowing and intelligent plea?
II. Did the PCRA court err when it denied [Fassnacht's PCRA Petition] when it found that trial counsel provided effective assistance of counsel[,] when trial counsel permitted [] Fassnacht to enter a plea the day after suffering a seizure?Brief for Appellant at 4 (issues renumbered).
III. Did the PCRA court err when it found that [] Fassnacht's plea was knowingly, voluntarily, and intelligently entered?
Our standard of review of a PCRA court's denial of a petition for post[-]conviction relief is well-settled: We must examine whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.Commonwealth v. Franklin , 990 A.2d 795, 797 (Pa. Super. 2010) (citation omitted).
In his first claim, Fassnacht argues that the PCRA court erred by failing to consider Dr. Martin's report regarding the effect of seizures on an individual's ability to think, concentrate and function. Brief for Appellant at 14-15.
Fassnacht failed to explain the relevance of the report, or to cite any relevant case law concerning this issue. Because Fassnacht failed to adequately develop his first claim, it is waived. See Pa.R.A.P. 2119(a) (stating that the argument shall include "such discussion and citation of authorities as are deemed pertinent."); see also Commonwealth v. Samuel , 102 A.3d 1001, 1005 (Pa. Super. 2014) (concluding that appellant waived his claim by failing to adequately develop his argument or provide citation to and discussion of relevant authority).
Moreover, as the PCRA court observed, Dr. Martin failed to identify the facts from which he based his opinion. Moreover, Dr. Martin's letter did not address Fassnacht's particular circumstances, and instead, merely described common complaints following a seizure. See PCRA Court Opinion, 12/8/16, at 12 n.9; see also Pa.R.E. 705 (stating that "[i]f an expert states an opinion[,] the expert must state the facts or data on which the opinion is based."). --------
In his second claim, Fassnacht asserts that the PCRA court erred in concluding that his plea counsel provided effective assistance at a time when Fassnacht was not competent to enter a guilty plea. Brief for Appellant at 12. Fassnacht cites his testimony at the PCRA hearing, during which he stated that he did not remember talking to his counsel on the morning of the guilty plea hearing, and he did not recognize his signature on the written plea colloquy. Id. at 13. Fassnacht argues that his counsel was aware that Fassnacht had a seizure the day prior to the guilty plea hearing, and that counsel's failure to stop the proceedings constituted ineffective assistance. Id. at 14.
In its Opinion, the PCRA court set forth the relevant law, addressed Fassnacht's claim, and concluded that it lacks merit. See PCRA Court Opinion, 12/8/16, at 4-13. Because we conclude that the PCRA court's determinations are supported by the record and free of legal error, we affirm on this basis as to Fassnacht's second claim. See id. We additionally note that Fassnacht does not allege that, had his counsel been effective, he would not have pled guilty. See Commonwealth v. Timchak , 69 A.3d 765, 770 (Pa. Super. 2013) (stating that with regard to the prejudice prong of an ineffective assistance of counsel claim, "where an appellant has entered a guilty plea, the appellant must demonstrate it is reasonably probable that, but for counsel's errors, he would not have pleaded guilty and would have gone to trial.") (citation and quotation marks omitted). Thus, Fassnacht is not entitled to relief on his second claim.
In his third claim, Fassnacht contends that the PCRA court erred in concluding that his guilty plea was knowingly, voluntarily, and intelligently entered. Brief for Appellant at 15-16. Fassnacht argues that if his "testimony is taken in conjunction with the report of Dr. Martin, it is evidence that [] Fassnacht's plea was not knowing, intelligent, or voluntary." Id. at 16.
Fassnacht failed to include citation to and discussion of relevant legal authorities in support of his contention, with the exception of one citation instructing this Court to consider the totality of the circumstances. See Brief for Appellant at 16. Instead, Fassnacht baldly claims that his guilty plea was involuntarily entered, without citing any evidence in the record to support his claim. Accordingly, his claim is waived. See Pa.R.A.P. 2119(a); see also Samuel , supra. We additionally point to the PCRA court's analysis of Fassnacht's ineffectiveness claim, wherein the court addressed the underlying claim that Fassnacht's guilty plea was not knowingly, intelligently, and voluntarily entered, and affirm on this basis as to Fassnacht's third claim. See PCRA Court Opinion, 12/8/16, at 7-13 (concluding that Fassnacht's guilty plea was knowingly, intelligently, and voluntarily entered, and that Fassnacht had not satisfied his burden of proving the he was suffering from a mental impairment that rendered the plea involuntary).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/31/2017
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